Arizona weekly enterprise., 1887-12-03

come in and report, and say such mans field, if 1t does not get it, twater,) will be lost and the field above could do without water till that got through. And, as they had no right to it below, under that system 1t was distributed to them; and it was understood among the Mexicans, and they always knew 1t was so, as long as they farmed here. And If the upper fields were suffering, and the lower fields were suffering, the lower fields would have tosuffer, because the new fields were entitled to the water last. It IS to be observed that there is not one word iii this important witness testimony about surplus water.
 Mir. Rentaria, one of the principal de- fendants, in his testimony says: They {the water committee, Hughes, Carrillo, and Davis; just where their authority comes from does not clearly appear told me not to let the water pass down there on the new field if they did not pay for 1t. I told them that MT. Maish Cup at the mill) had all the water stopped. They (the committee) told me If you can't take care of the fields down there, take care of the fields up here" The witness who had been water judge for 12 years, was asked this question; Before that time, (March, 1885, have you given the people below the lane water the same as you have above the lane2 Answer Other years ] had; but Mir. Dalton and others were the first to buy tickets, and BIT. Leon and Pacheco had bought tickets and 1 gave them the water. O. What time did Maish shut off the water? A. About the 10th of March; he let 1t over flow. He got some men and raised the 1 embankment higher around the pond. After he fixed his dam, he kept the water back for twelve days; then there was little amount of water" And afterwards ccrrects the time, and makes 1t from the first to the fifteenth of April.
 l Another fact of some significance. tending to corroborate the testimony of plaintiffs, is that, as soon as the 'sNew Fields" began to be settled, the ''old common fence" was allowed to disappear F. S. Leon, who, in 1862, under the martial-law proceedings, (which defen- dants had invoked for some reason in their easel was appointed, not by the people, but by said Ferguson, the nrili- tary governor of Tucson, one of the water commissioners, assumed to settle the rights of the disputants. When this witness was asked why this Told common fence" was allowed to disappear after the "New Fields'' began to be settled, his answer was 1T don't know" The fact rem aims, however, that 1t disappeared about the time the New Fields' began to be settled up and cultivated.
 The evidence of these witnesses, (the most important and impartial for the de- tendants, perhaps together with plain tiffs' witnesses, and the other facts, and circum stances of the case, undoubtedly show that, until late date, there had been a general sufferance of an equal and equitable distribution of said waters: regard being had to those fields needing the water most.
 Beyond question, the settlers of the l "Old Fields" most of them had, prior right to these waters; but for Is years or more they did not enforce 1t. Can they dc it now2 Are they not barred2 Plain l tiffs' adverse users of these waters for the time three times greater than the period of statutory limitations in this territory, has, we think. ripened into vested right to the equal use of the waters of the Santa Cruz river, with the cultivators of the "Old Fields" proportional to the number of acres in cultivation, and re- gard being had to the helds needing the water most.
 We entertain the belief, from the evi- dence in this ease, that there was a GUS tom among th hese people ill the distribu- tiou of thls water; and that custom was certain, definite, uniform, and notor1- ous; that it had in 1t the clements of equity and good conscience, of neigh borly kindness and good will, and that under it cultivators of the ''Old Fields, while claiming an equal right to the use thereof, had settled their wrangles and disputes, and had lived together as neigh bors and friends for more than 16 years, and had ultimately acquesced in an equi- table and equal distribution of said water, giving it first to those fields that needed it the most; and this custom, we think, has acquired sufficient age to give it the force and sanction of the law.
 Judgment reversed, and cause remand ed to First judicial district court in and for Pima county, with directions to enter judgment for plaintiffs, making perpet- i tba ;piuOotiOn